Volume 35 — Texas Reports

<p>Application to this court for the writ of mandamus.</p> <p>Lloyd was plaintiff in the court below. In November, 1867, he brought suit in the District Court of Marion county, against Mrs. C. E. Brinck, to recover $18,000, which she was alleged to owe him by her promissory note.</p> <p>Without unnecessary detail of the pleadings or evidence in the court below, it suffices to state, that on the trial of the cause, in May, 1871, the jury returned their verdict, in regular form, in favor of Lloyd, for the amount of Ms debt and interest; “whereupon,” says the record of the court below, “the court ordered that the verdict rendered by the jury in the above stated cause be set aside, and that a new trial be granted.” At a later day of the term, the plaintiff moved that judgment be rendered in accordance with the verdict, but the motion was overruled, and he excepted.</p> <p>No reason was assigned by the court below, so far as the record shows, for its arbitrary order setting the verdict aside, and granting a new trial; but the charge of the court to the jury was strongly in favor of the defendant, who was a married woman when the note was given. It may, therefore, be safely inferred that the jury’s disregard of the instructions was the cause which superinduced the order.</p> <p>This proceeding in the Supreme Court was instituted by an original petition under oath, filed in this court on the first of July, 1871. It impleaded Mrs. Brinck, and also J. D. McAdoo, the judge of the District Court, as defendants. Its allegations recapitulated the pleadings and proceedings in the District Court, and exhibited a transcript of the record of the case in that court. It prayed that the defendants be cited to show cause why a peremptory mandamus should not issue, commanding the defendant McAdoo,as judge of the District Court, or any other judge exercising the powers and duties of judge of such District Court, to render final judgment according to the verdict in the cause, and to ■cause the same to be entered in the minutes of the •court as a record thereof.</p> <p>On this petition Mr. Justice Ogden, in chambers, on the first of July, 1871, indorsed Ms fiat to the clerk of the Supreme Court, directing him to issue scire facias, returnable on the first day of the ensuing term, and requiring the defendants then to show cause why a peremptory mandamus should not be granted in accordance with the prayer of the petition. Thereupon the •clerk issued a precept to the sheriff of Marion county to cite the defendants to show cause as required by the •order of the Judge. This precept was served on the defendants, and Mrs. Brinck filed her answer on the twenty-fifth of ¡November, 1871. In her answer she excepted to the petition on three grounds, viz.:</p> <p>1. The cause, as shown from the proceedings, is still pending in the District Court, and is not subject to revision by mandamus.</p> <p>2. The action of the District Court in granting or refusing a new trial is matter of judgment or discretion of the court, and cannot be revised on mandamus.</p> <p>3. The remedy is to prosecute an appeal, or writ of •error, on the final trial in the District Court, if injustice should be done the plaintiff.</p> <p>Besides these exceptions, the answer set forth an attempted justification of the action of the judge of the District Court. This justification was based upon the •contumacy of the jury in disregarding their instructions ; and upon the coverture of the defendant Brinck, .and her consequent incapacity to contract, at the date of the plaintiff’s demand.</p> <p>Upon this state of pleadings in the Supreme Court-the cause came to hearing.</p>

Tried below before the Hon. Seymour White. The note was payable to F. H. Green or bearer. The plaintiff alleged in his petition, that Green transferred the note to him, by delivery and for value, after it became due.

<p>Appeal from the Criminal District Court of Galveston. Tried below before the Hon. Samuel Dodge.</p> <p>The facts are indicated in the opinion.</p>

<p>Although the office of county attorney was not created in this State until.' the year 1866, yet the incumbents of that office were amenable to the provisions of the Penal Code, enacted in 1858, whereby any legislative, executive, or judicial officer is punishable for accepting a bribe, bjr imprisonment in the penitentiary. (Paschal’s Digest, Art. 1870.)</p>

<p>Error from Panola. Tried below before the Hon. C. A. Frazer.</p> <p>The opinion states the case.</p>

<p>Í. No suit in. the District Court can be sustained upon a money demand against a decedent’s estate unless the demand was first presented to the administrator for allowance, and the prescribed action taken for the establishment of it in the Probate Court. Allowance and approval -of the demand made subsequent to the institution of the suit, will not obviate the difficulty. (Danzey v. Swinney, 7 Texas, 626, and Millican v. Millican, 15 Texas, 460, cited by the court.)</p> <p>A The fact that by the Constitution of 1869, now in force, the probate jurisdiction is vested in the District Courts, does not, it seems, change the above rule in our law.</p>

<p>For rent in arrear on a verbal contract, a landlord sued out a distress warrant, returnable to a district court, and after levy of the warrant, the property seized was replevied by the tenant. Subsequently, the landlord filed his petition in the district court, but no citation issued, nor was any appearance entered by the defendant. Judgment final and by default, and without writ of inquiry or a finding by a jury, was rendered by the court against the defendant, who now prosecutes his writ of error. Held, that the judgment is erroneous; the defendant was entitled to citation and service, notwithstanding the distress warrant and his replevy of the property; and the demand not being evidenced by writing, an inquest of damages by a jury was necessary before final judgment.</p>

<p>Appeal from Liberty. Tried below before the Hon. W. Chambers.</p> <p>The opinion of the court presents the material facts of the case.</p>

<p>1. A judgment by agreement cures all errors prior to the agreement and judgment.</p> <p>2. The case of Farquhar v. Hendley, 24 Texas, 800, cited with approval so far as it relates to costs upon a former appeal to this court.</p>

<p>When there are several defendants, the citation served upon each must contain the names of all of them. If any of them be omitted, judgment by default is not valid.</p>

Tried below before the Hon. M. Priest. The subject matter of this suit was a tract of eight hundred acres of land in Nacogdoches county. The appellants were plaintiffs, and filed their petition in - February, 1865. By their petition, they alleged that the land in question had been purchased by Joseph W. Summers, father of the plaintiff Elizabeth, with money inherited by her from her maternal grandfather.

Shelby. Tried below before the Hon. M. W. Wheeler. The opinion of the conrt states clearly the material facts of the case.

Eerob from Liberty. Tried below before the Hon. J. M. Maxey. The character of this case is shown in the opinion of the court. The petition asked only for a general judgment against the defendants, Smotridge and wife.

Tried below before the Hon. L. W. Cooper. The appellees sued the appellant on promissory notes transferred to the plaintiffs by one J. C. Miller. The defendant pleaded offsets consisting of sundry articles ■ sold by him to Miller, before the latter transferred the notes to the- plaintiffs..

<p>Error from Liberty. Tried below before the Hon. James M. Maxey.</p> <p>The opinion states the facts.</p>

<p>Error from Polk. Tried below before the Hon. J.</p> <p>The material facts are clearly indicated in the opinion.</p>

<p>1. An officer taking a deposition must identify the cause in which it is taken, by stating its title in the caption or the conclusion of his certificate. A mere recital that the deposition, is taken “in compliance with the annexed commission ” is not sufficient.</p> <p>2. In an officer’s certificate to a deposition it was stated that the “answers were sworn to and subscribed ” before him, but by whom sworn to and subscribed was not distinctly stated. Held, that the deposition should have been suppressed on motion.</p>

<p>1. By the act of May 19, 1871 (General Laws, p. 108), a party litigant may testify in his own behalf in all cases except actions against executors, administrators or guardians ; or lie may be called to the witness stand by the opposite party. Seld, that when the party thus becomes or is made a witness, he is not entitled to witness fees.</p> <p>2. A witness’s affidavit, for the purpose of proving the costs to which he is entitled, should fully state the number of days he has attended, and the number of miles for which he is entitled to charge.</p> <p>8. A district clerk’s certificate of the attendance of a witness is only pi*ima facie evidence against the party chargeable with the witness’s cost; and the acts of the clerk in this and all other respects, are subject to be inspected and corrected by the court.</p>

<p>Appeal from Polk. Tried below before the Hon. H. C. Pedigo.</p> <p>The facts are indicated in the opinion of the court.</p>

<p>"In a suit upon a note and to enforce a lien upon certain machinery, the verdict was in favor of. the plaintiff for the amount of the note and interest, and “that the plaintiff have his mortgage lien upon the property described in said note.” Held, that it was error to go beyond ' the verdict and establish a lien upon sundry articles not designated in the note, but in a receipt filed in the cause by the defendant.</p>

<p>Subsequent to the enactment of the Homestead Law of 1870, O. filed a certificate upon a piece of vacant land upon which P. was then living. P. had previously been a tenant of 0., and had moved from his previous residence on O.’s land to the public land, in ignorance - that the latter was vacant, and believing it to be the property of O. * After 0. had filed upon the land and obtained a survey of it, but within the twelve months allowed by the Homestead Law, P. learned the truth respecting the land, and applied to the county surveyor for a survey of it as his homestead. Held, that P. was in no sense the tenant of 0. as to the land in controversy, nor does any consideration of good faith preclude him from claiming it as against 0.; and under the Homestead Law, his right is superior to C.’s file and survey.</p>

<p>Appeal from Smith. Tried below before the Hon. Z. Norton.</p> <p>The case is indicated in the opinion of the court.</p>

Tried below before the Hon. J. B. Williamson. This veteran case was commenced as far back as 1849. Though a suit for real estate, it was brought by Hooper “ for the use of the legal heirs of Jesse Parch-man, deceased,” naming them—an anomaly of which there is at least one other example in the Reports of this State. This case was before this court in 1867, on a former appeal, which is reported in 30 Texas, 154 ; to which report reference may be had for some of the facts.

<p>Appeal from Lamar. -Tried below before the Hon, A. H. Latimer.</p> <p>The character of the case is disclosed by the opinion and the head note.</p>

<p>On a forfeited recognizance, judgment nisi was taken against the principal cognisor and liis sureties ; but, after scire facias was duly issued and served, the judgment absolute was rendered against the sureties only. Held, that the judgment was erroneous, because not rendered against the principal as well as the sureties.</p>

Error from Henderson. Tried below before the Hon. .John G-. Scott. The condition of the bail bond described the two •offenses in the phraseology of the charging part of in•dictments for theft from a house.

Tried below before the Hon. J. B. Williamson. The opinion of the court, in its brief review of the evidence, states it as clearly and as fully as it appears in the statement of facts, embodied in the transcript. hTo person who saw the body of the deceased had known Morgan Evans in his lifetime. His father and brother were witnesses, but they did not see the body.

Tried below before the Hon. William Chambers. The appellant was found guilty in the court below, and fined one hundred dollars. The parties were negroes.

<p>Appeal from Wood. Tried below before the Hon. Z. Norton.</p> <p>The case is sufficiently stated in the opinion of the court.</p>

Tried below before the Hon. J. B. Williamson. The assault consisted in threatening gestures with a pistol and a bowie-knife. The fine authorized by the Code, Paschal’s Digest, Article 2153, is not less than one hundred, nor more than one thousand dollars.

Proceeding in the Supreme Court for a mandamus to a district clerk, to make out and send up a transcript of the record in a cause determined in the district court, and to which the petitioner had sued out a writ of error, in forma pauperis. The opinion indicates such facts as are of any use. The present proceeding is an outgrowth from the case of Rodgers v. Ferguson, a report of which, on a former appeal, will be found in 32 Texas.

<p>1. Section 16 of the Bill of Rights provides that no citizen shall be deprived of life, liberty, property or privileges, or in any manner disfranchised, except by due course of law. The Constitution (Article 5, Section 18,) subjects sheriffs to removal by the district judges, for cause to be spread upon the minutes of the court. Held, that there is no repugnancy between these two provisions, inasmuch as the latter prescribes the due course of law required by the former.</p> <p>2. A sheriff is not entitled to a trial by jury upon a proceeding by the district judge for his removal from office, under Section 18, Article, 5 of the Constitution; and a rule entered against a sheriff, requiring him. to show cause why he should not be removed, answers all purposes, of a warrant or citation, as he is supposed to be always in court, and. to be apprised of its orders.</p> <p>3. On the removal of a sheriff by a district judge, the cause of removal is required to be made matter of record, in order that it may be known, and that, if erroneous, it may be, revised and corrected on appeal.</p> <p>4. The cause- shown by record for the removal of a sheriff was his non-' compliance with the verbal command of the district judge, pronounced in open court, to convey prisoners to the jail of an adjacent county for confinement. Held, that the verbal order was not a lawful authority to the sheriff for the conveyance and commitment of the prisoners to the jail of another county; and therefore it was error to remove him from his office because of his non-compliance with the order.</p> <p>5. While [fully recognizing the authority conferred on district judges by the Constitution, to remove sheriffs for cause, this court regards it as an extraordinary power, out of the usual course of the law, and not to be exercised except in cases of great necessity, and even then with great caution and in strict conformity with the authority given.</p>

Tried below before the Hon. X B. McFarland. The general character and leading features of this ■case are indicated in the opinion of the court. A detail of the evidence is unnecessary, in view of the questions •decided. Able and elaborate arguments were filed by the counsel in this case, but they deal mostly with the evidence .and the facts.

Error from Henderson. Tried below before the Hon. John Gr. Scott. The facts are indicated by the opinion. O’Heal was a surety on the bail bond.

<p>Appeal from Lamar. Tried below before the Hon.. A. H. Latimer.</p> <p>The opinion states the case.</p>

Tried below before the Hon. M. P. Norton. This cause was decided in the District Court as long ago as 1858. It was instituted in the county of Cameron, within which the land in controversy is situated, and the petition was filed in the district court of that county on the ninth of April, 1852. The venue was changed to the county of Hueces.

Tried below before the Hon. John Gr. Scott. For practical purposes, the opinion sufficiently states the facts of the case.

Ebboe from Grimes. Tried below before the Hon. ¡N. Hart Davis. The material facts are stated in the opinion of the court. The overruling of the motion for a new trial was the error relied on. The case of Goodrich & Scott, appellants, v. Manwarring, numbered 757 in this court, was considered and disposed of in the present opinion. The difference between the attitudes of the two cases was, that Manwarring had obtained an injunction of this last case, and had not of the other.

Tried below before the Hon. Wm. Chambers. The action was for damages by reason of an assault and battery. The opinion indicates such facts as are involved in the rulings.

<p>1. The case of Oberthier v. Stroud, 33 Texas, 523, cited with approval.</p> <p>2. No conflict is recognized between the cases of Blankenship v. Douglass, 26 Texas, 225, and Ayres v. Duprey, 27 Texas, 593.</p>

Tried below before the Hon. J. D. McAdoo. The facts are apparent. The rulings on the merits are not formulated in the head notes, because they are of a purely negative character.

Tried below before the Hon. A. H. Latimer. The opinion of the court clearly indicates all the material facts. The court below was requested by the appellant to instruct the jury that “if the plows were lost by any act of the Confederacy (so-called), the loss must fall upon the defendantbut this instruction was refused.

<p>Appeal from Rusk. Tried below before the Hon. J. B. Williamson.</p> <p>The opinion indicates the facts.</p>

Tried below before the Hon. M. Priest. The material facts of the case are stated clearly and connectedly in the opinion of the court. The instructions given to the jury by the district judge will be found in the argument of the appellant’s counsel.

Tried below before the Hon. J. B. Williamson. There was a former appeal in this case, of which a report will be found in 30 Texas, 296. The original pleadings of the parties, and the principal facts down to that stage of the case, will there be found. After the remand of the cause upon that appeal, the ■defendants amended their pleadings, but the amendments have no bearings upon the questions discussed in the present opinion of the court.

Tried below before the Hon. George E. Scott. The facts of the case, so far as they are material, are ■stated or indicated in the opinions. This cause was first decided by this court in March, 1871, when the opinion of the majority of the court was delivered by Mr. Justice Walker, and a dissenting •opinion by Presiding Judge Evans.

Error from Galveston. Tried below before the Hon. G. E. Mann. McMahan brought this action on the eighteenth of May, 1869, against M. Stoddart, E. A. Burk and Robert B. Stapp, as partners trading under the style of Stoddart & Burk. The cause of action was a promissory note for $3271.67, executed by Stoddart & Burk to the plaintiff on the twenty-first of April, 1868, and due on July 1, 1868.

Error from Galveston. Tried below before the Hon. George E. Mann. In the most importannt features, this case is identical with that of Stoddart v. McMahan, ante 267, so far as the questions arising upon the allegation of Stapp’s partnership are concerned. Ho attachment was sued out in this case.

Tried below before the Hon. Wm. Chambers. The opinions disclose the material facts. Part of the .assets of the firm, consisted of land, and the transfer of Woods, the retiring partner, to Sims and Brazee, was in the form of a bond to make title to the land, though it also assigned his interest in the personalty. The appeal was by Bra-zee’s administratrix alone.

Tried below before the Hon. James Masterson. The leading facts of the case are clearly indicated in the opinion of the court and the head-notes. The evidence of the deed was by a certified copy from the county clerk’s office, and it will be observed that appellant’s counsel impugn this evidence in this court on the ground that there was but one witness to the deed, and it was proved by him for record, and not recorded on the acknowledgment of Schroeder.

Tried below before the Hon. Geo. W. Smith. This suit was brought in the year 1855, and tried in the court below at the Spring Term, 1859. It was strongly contested, and the record is quite voluminous. The facts, however, on which the rulings of this court depend, are few and simple, and are clearly stated in the opinion. The present decision was made upon a rehearing, and upon able and elaborate arguments of counsel.

Tried below before the Hon. Peter W. Gray. The material facts relied upon by the defendants are clearly indicated in the opinion of the court. The judgment below was for $581, and was rendered in July, .1859. The long delay in the final adjudication of the case appeal's to be accounted for by the death of parties.

Tried below before the Hon. James Masterson. The opinion of the court supplies a lucid statement of all facts involved in the rulings made. The plaintiffs and appellants were Joseph and Julius, the two sons of William M. Settegast, deceased.

<p>II. A suit in the district court abated by reason of the death of the defendants, and was never revived against their representatives. No cost-bond was required of the plaintiff, but in the order abating the suit the court entered judgment against the plaintiff for the costs. Held, that the judgment was not authorized by law-, and is void. Though the plaintiff was liable to the officers of the court for the costs made by himself, their only remedy against him was by action of debt. (Ogden, J., dissenting.)</p> <p>'2. A purchaser at a sheriff’s sale under a void judgment acquires no title.</p>

Tried below before the Hon. L. H. Cooper. The opinion states the case. Another case for a breach of the peace was brought up by the State upon the same error, and is reversed in almost identical terms, and is therefore not reported. It was the case-of The State v. Tom Murchison.

<p>Indictment charged defendant with the theft of four beef steers from the-possession of one 0., proceeding with the following jargon,—“without his consent, intent to deprive him, the owner, of the value of the same, and to appropriate the to the use himself, the said George Sparks.” Held, a nonsensical accumulation of words; and this court expresses surprise that a trial and conviction should have been permitted upon such an indictment.</p>

Tried below before the Hon. Samuel Dodge. The indictment was demurred to in the court below, and demurrer was sustained; whereupon the State .appealed.

Tried below before the Hon. A. H. Latimer. On the trial of the appellant for the murder of one Turner Hopgood, the witnesses on both sides having been placed under the rule, the district attorney asked permission of the court to confer with the witnesses for the State. Counsel for the prisoner objected, on the simple ground that the witnesses had been placed under the rule. The objection was overruled, and the permission granted; to which exceptions were reserved.

Tried below before the Hon. Henry Maney. The charge in the information was playing cards in a public place. The defendant’s motion to quash, for the reasons indicated in the opinion, was sustained by the court below, and the State appealed. Defendant moved to dismiss the case in this court, because the court below, after quashing the information and the appeal taken, suffered him to give his own recognizance, without sureties.

Tried below before the Hon, L. Lindsay. The opinion of the court and the head-note state every fact of any significance disclosed by the record.

Tried below before the Hon. J. B. Williamson. The parties were freedmen. The defense claimed to have won the money at cards, and not by robbery.

<p>Appeal from Van Zandt. Tried below before the Hon. J. G-. Scott.</p> <p>The only material fact is disclosed in the opinion of the court.</p>

Tried below before the Hon.. George E. Mann. The court below allowed the State to challenge jurors because they were not freeholders or householders, and the defendant excepted on the ground that the present Constitution makes all qualified voters competent for jury service. The appellant was tried for the murder of Thomas Smith. He was found guilty, and death assessed as the penalty. The brief filed in his behalf bears no signature.

Tried below before the Hon. J. R. Burnett. The appellee was indicted for having sold spirituous liquor in a quantity less than a quart, “without first having obtained license therefor.” Numerous exceptions were taken to it, and were sustained by the court below.

Error from Kendall. Tried below before the Hon. M. B. Walker. On the fourteenth day of September, 1868, Metzger brought this suit against 0. F. Wendler, Henry Wendler and Carl Adam, on two promissory notes executed by them to him, at San Antonio, on the twenty-sixth of October, 1861, for $510 each, one due at twelve, and the other at twenty-four months after date. The petition admitted payments on the first note, of $65, September 24, 1865, and of $60, March 3, 1866.

<p>1. As we have in this State no separate and. distinct law and chancery courts, the rules of practice in those courts where the law and equity jurisdictions are distinct and separate cannot always be applicable to our courts.</p> <p>2. In the courts of this State, an application for a new trial is governed by the same principles when made during the term as when made subsequent thereto; and therefore when an application has been made during the term, and the judgment of the court upon it has been rendered, the questions involved are res adjudicata, and after the adjournment of the term the court has no power to reconsider its judgment, unless it is impeached as a nullity.</p> <p>8. Plaintiff filed in the district court his bill for a new trial, and therein set forth, in substance, that he had previously sued the defendants in the same court on promissory notes given in October,- 1861, for merchandise; that the defendants pleaded numerous fictitious pleas, and upon them obtained continuances by false affidavits, but on the immediate eve of the trial, and in the absence of the plaintiff, they filed for the first time the defense that the notes were payable in Confederate money, which defense was wholly false and untrue ; that defendants procured two witnesses to swear falsely in support of such Confederate money defense, and plaintiff’s counsel, having no reason to anticipate such defense or false testimony, was taken by surprise thereby, and was unable to countervail it; that the verdict and judgment went against plaintiff on that defense, and in consequence of plaintiff’s absence, his counsel could not have his information and assistance in preparing a proper motion for a new trial, and Ms motion therefor was overruled; that plaintiff lived on the frontier, and his constant presence at home was necessary to the protection of his wife and home from the Indians, and he had no reason to anticipate such a false defense would be set up by the defendants; that smce the trial he had discovered the original contract and invoices by wMch the amounts of the notes were fixed, and also sundry witnesses, by whom and which he could show that the notes were payable in lawful money, but which evidence was not adduced by him on the former trial for reasons already indicated. In support of his bill the plaintiff filed the written evidences referred to in it, and also the affidavits of sundry witnesses, negativing the defense of Confederate money. The defendants’ demurrer to the bill was sustained by the court below. Held, that the demurrer was properly sustained. The plaintiff should have made his showing upon his motion for a new trial in the original suit.</p> <p>4. A new trial will not be granted on the ground of newly discovered evidence, when the object of such evidence is to impeach the testimony of a witness.</p> <p>ÍÜ. Plaintiff sued on notes, but judgment was rendered against Mm. After the term elapsed he filed his bill for a new trial, on the ground of newly discovered evidence, and fraud ; but his bill was dismissed on demurrer. He now bring up both judgments by writs of error to this court. Held, that such practice is unprecedented, and will not be countenanced.</p>

Error from Galveston. Tried below before the Hon. George R. Scott. The material allegations of the bill are indicated In the head-note.

<p>No appeal to the Supreme Court lies from judgments of the district courts in cases appealed from justices of the peace.</p>

<p>Error from Grayson. Tried below before the Hon. C. C. Binkley.</p> <p>The facts are patent on the face of the opinion".</p>

Tried below before the Hon, C. T. Garland. The opinion of the court sufficiently discloses the character and states the facts of the case. The “second ground of defense,” mentioned in the opinion, was the non-presentation of the plaintiffs’ claims to the administrators of Oldham, within twelve months after the grant of administration.

Tried below before the Hon.. Robert J. Towns. This venerable suit was brought to the Spring Term, 1854, and was appealed to this court at its next term thereafter. It was an action in the name of Governor Bell to recover of the appellants, as sureties of one Grayson, sheriff and tax collector of Austin county, some $1300 of tax money, collected by Grayson, in 1842-3-4, and not paid over or accounted for by him.

Tried below before the Hon. J. R. Burnett. Plaintiffs instituted suit in the District Court of Walker county at the Spring Term of 1871, in an action of trespass to try title to certain town lots in the town of Huntsville.

Tried below before the Hon. P. W. Gray. This is a venerable record, and has been pending on appeal since 1859. The opinion of this court states such of the facts as are germane to the rulings made.

<p>Error from. Colorado. Tried below before the Hon. Livingston Lindsay.</p> <p>There is no occasion for a statement of the facts.</p>

<p>Appeal from Rusk. Tried below before the Hon. J. B. Williamson.</p> <p>The opinion indicates the only material fact.</p>

Tried below before a special judge selected by the parties. The character of the case is indicated by the opinion. The court below instructed the jury that it was not material whether there was or was not any lawful impediment to the marriage of Bryan Tison to the plaintiff Nancy, or whether or not her son and co-plaintiff was the legitimate child of Tison. There was a general verdict for the defendant, and judgment was rendered in accordance with it.

<p>In a suit on a general indebtedness, verdict and judgment were erroneously rendered in gold; but this court, on appeal, allowed the appellee to rectify the error, and directed that the judgment stand affirmed as an ordinary judgment, soluble in legal tender.</p>

Error from Walker. Tried below before the Hon.. P. W. Gray. This is a case of long standing in court. There is no-occasion to give its history.

<p>Appeal from Fayette. Tried below before the Hon. T. C. Barden.</p> <p>The opinion states the case.</p>

<p>Appeal from Walker. Tried below before, the Hon. J. R. Burnett.</p> <p>There is no occasion to detail the facts.</p>

Tried below before the Hon. L. Lindsay. So far as the rulings made in this case are concerned, the facts are fully indicated in the head-notes. The appellant was the administrator de bonis non of Wm. Harbert’s estate, against which the claim was asserted. When presented to him for allowance, he rejected it on the ground of his belief that it had been settled with the former administrator of the estate.

Error from Grimes. Tried below before the Hon. James B. Burnett.

Tried below before the Hon. J. P. Richardson. On the tenth of December, 1870, the appellant filed his affidavit before a justice of the peace, alleging that the defendant owed him one hundred and ninety-eight dollars for the rent of certain premises, and that the same was due and unpaid; wherefore he prayed for a distress warrant.

Error from Colorado. Tried below before the Hon. L. Lindsay. The material facts are indicated in the opinion of the court, and in the second head-note.

Tried below before the Hon. I. B. McFarland. The opinion of the court states all the material facts. G-ay’s judgment was recorded in February, 1866. In this court, counsel for Cole, the intervenor and one. of the appellees, moved the court to strike out the charge of the court below to the jury, on the ground, that it was not comprised within the agreed case, and. consequently was not properly part of the record. This motion was overruled in the following opinion:

Tried below before the Hon. O. C. Binkley. The charge was for assault with intent to murder, the indictment being found in October, 1870. The jury returned a verdict of guilty, and assessed the penalty at two years in the penitentiary ; but no judgment appears to have been rendered on the verdict.

These causes were appeals from the District Courts of Marion, Kaufman and Van Zandt counties. Some reference to the facts of the cases may add practical significance to the rulings. In English’ s case the offensive weapon was a pistol, and it was proved that he was in a state of intoxication while wearing it about in the city of Jefferson.

Tried below before the Hon. J. R. Burnett. The details of this case are sufficiently repulsive, but a recital of them would serve no useful purpose. The opinion and the head-notes indicate them distinctly.

<p>Appeal from Fannin.</p> <p>The opinion of the court is the only paper of this cause which has reached the Reporter. It is obvious, however, that this is an appeal by the State from a judgment of the district court quashing an indictment for an assault with intent to commit rape, robbery, burglary, or murder. The precise objection on which the indictment was quashed is not disclosed.</p>

<p>1. Indictment against a sheriff for willfully permitting an escape alleged the official character of the defendant, and charged that he, having under his arrest and in his legal custody, one L., a person accused of a felony, “ to-wit: He said L. was then and there accused of theft of a pocketbook and United States currency of the value of four hundred dollars, the property of, and from the possession of him, the said H. (the sheriff himself), did feloniously and willfully permit the said L. to escape,” etc. Eeld, that it was error to quash the indictment on the ground that it does not show that the arrest of L. was legal, nor that he had been placed in defendant’s custody hy legal authority, nor that any accusation had been legally made against L. (Paschal’s Digest, Article 1938.)</p> <p>3. In an indictment against a sheriff for willfully permitting an escape, it would he surplusage to aver the particulars of the crime, arrest or trial of the person whose escape is alleged.</p> <p>3. The State now has a right of appeal in felony as well as misdemeanor cases. The ruling to the contrary in The State v. Thornton, 32 Texas, 104, is not applicable under the present Constitution of the State, adopted in 1869. (The case of The State v. Wall, ante 484, cited hy the court.)</p>

Tried below before the Hon. J. D. McAdoo. The opinion of the court indicates the substance of the case, and in the head-notes will be found such other particulars as cast any light on the rulings. The motive and object of the murder appear to have been the robbing of the peddlers.

Tried below before the Hon. -'Charles Soward. The appellant having been found guilty, and his fine •.assessed at one dollar, his counsel moved in arrest of judgment, on the ground that the act of 1866, creating the offense, “is so indefinitely framed, and of such •-doubtful construction, that the same is and should be inoperative.”

<p>Appeal from Johnson. Tried below before the Hon. Charles So ward.</p> <p>The facts are obvious. A new trial was refused by the court below.</p>

<p>Appeal from Collin. Tried below before the Hon. W. II. Andrews.</p> <p>The opinion states the case.</p>

Error from Denton. Tried below before the Hon. C. C. Binkley. The exceptions made and sustained in the court below were that the indictment did not designate the house or place where the game was played ; that it charged no offense against the laws of the State; and that it did not apprise the defendant of the charge he was called upon to answer.

Tried below before the Hon. C. C. Binkley. The indictment charged an “aggravated assault with a certain pistol, being a deadly weapon, loaded,” etc. The verdict was : “We, the jury, find the defendant guilty, and assess the punishment at fifty dollars.” Motions in arrest and for a new trial were made and overruled.

Tried below before the Hon. Hardin Hart. After conviction on their plea of not guilty, the defendants moved in arrest of judgment, on the ground indicated in the head-note. The motion was sustained, and the State appealed.

<p>Indictment charged two persons with playing at a game with cards at a-public place, and at the same time, but failed to allege that they played together. Held, on the authority of adjudicated cases, that the indictment was insufficient; though, if the question was an open one, this court inclines to the contrary opinion.</p>

Tried below before the Hon. John G. Scott. The appellee was plaintiff below, and his suit was for the purpose of enforcing a judgment recovered by him in May, 1866, against one Clarke, whose administrator was a co-defendant with the appellant Gardner. The opinion and the head-notes indicate the material facts involved in the rulings.

Tried below before the Hon. I. B. McFarland. A former appeal of this veteran suit is reported in '26 Texas, page 21, and a correct though compendious statement of the material facts will there be found. ‘That appeal was taken from a judgment rendered in 1853, in favor of the present appellant, by the District Court of Fayette county, to which the venue had been -changed from the county of Washington, within which the land lay, and where the suit was commenced.

Tried below before the Hon. Greorge E. Mann. The opinion states the case as presented by the record. The petition was filed in the county court in January, 1870, while that tribunal was still exercising the civil jurisdiction conferred upon it under the Constitution of 1866.

Error from Rusk. Tried below before the Hon. J. B. Williamson. The opinion and head-notes disclose the material facts. The suit was on a promissory note, and appellants set up that it was payable in Confederate money, etc., but failed to plead their discharge as bankrupts.

<p>In an action of trespass to try title, the defendants claimed the land under a deed executed on the twenty-seventh of November, I860, while the plaintiffs claimed it under a sheriff’s sale by virtue of a judgment which was recorded in the county on the same twenty-seventh of November, at four o’clock in the afternoon; and the relative merits of the titles depended on the question of fact, whether the registration of the judgment or the execution of the deed was prior in point of time. Held, that as the plaintiffs in this form of action can only recover on the strength of their own title, the burden of proof rested upon them to show that the judgment was recorded before the deed was executed; and in the absence of evidence on that question, there is no presumption that the judgment lien attached previous to the execution of the deed.</p>

Tried below before the Hon. I. B. McFarland. The head-note is believed to indicate all the material facts. There was no pretense that O’Daniels was expressly authorized to confide the cotton to any one. 'Two witnesses, however, testified that he was instructed “to do the best he could with the cotton, just as if it was his own.” The jury found for the defendant.

<p>1. A lease of a house stipulated that, “for the security of the lessor, for the collection of the rent, in the value stipulated, a mortgage lien, with powers of sale in the said lessor, is hereby reserved on all property of said lessees in said buildings, or on said premises, to secure the rent for the term.” By a subsequent clause the lessees covenanted that they “hereby mortgage and hypothecate to the said lessor all and singular the furniture, stock, fixtures, and all other property belonging to them in said house or on said premisesand empowered the lessor to seize and sell the mortgaged effects, to satisfy arrears of the rent. The lessees were a husband and wife, who executed the instrument as parties, and the latter of whom made the separate acknowledgment prescribed for married women. Held, that the “mortgage lien” thus created did not attach to such property as was exempt from execution. And even if specific exempted effects had been designated, it is questioned whether the lien would have attached to them.</p> <p>2. It was not error to sustain a demurrer to a pleading which was a mere, attempt to give a construction to a written instrument, and to explain suppositious ambiguities.</p> <p>3. The right of action for trespass to property exempted to a bankrupt, in accordance with the Bankrupt Act of the United States, is not in-the bankrupt’s assignee, but is in the bankrupt himself, notwithstanding the bankruptcy.</p>

<p>Appeal from Marion. Tried below before the Hon. J. D. McAdoo.</p> <p>The opinion states all material facts.</p>

Tried below before the Hon. L. Lindsay. The character of this action is clearly disclosed in the opinion of the court; and in view of the questions decided, there appears to be no occasion to detail the contents of the voluminous record.

Tried below before the Hon. L. Lindsay. This suit was instituted on the twelfth of March, 1867, by the guardian of Mary Buckley (who subsequently married the appellee, W. H. Howard), to recover from the estate of C. W. Buckley, her deceased father, the sum of $17,606, alleged to be due her for the hire of a number of slaves, bequeathed by her mother, Mrs. L. J. Buckley, to the said Mary and her two brothers, Frederick C., and O. W., Jr., who had both died, leaving said Mary…

Tried below before the Hon. J. B. Willliamson. The only question in dispute was that indicated in the first head-note. As some three years, had elapsed between the sale of the cotton and the trial of the cause, the question materially affected the amount for which the plaintiffs were entitled to recover. The opinion states such of the facts as are relevant to the matter in controversy.

Tried below before the Hon. James Masterson. The details of the case are not necessary to a comprehension of the rulings.

Tried below before the Hon. J. B. Williamson, The opinion of the court indicates the character of this case, and discloses such facts as are relevant to the rulings.

Tried below before the Hon. W. H. Andrews. The opinion of the court discloses the character of this case. By an amended petition it was alleged that the defendant Roberts, when he purchased from Mus-grove the land for which the notes were given, had notice of the vendor’s lien outstanding against the property.

<p>1. Plaintiffs sued V.’s executors on a note of a mercantile firm styled Moss & Co., and alleged that V. was a partner in that firm. The executors pleaded the general denial, and also a sworn special answer, in which they set forth that they were well acquainted with their testator in his lifetime, and often heard him speak of his business affairs, but never heard him say or intimate that he was a partner in the firm; that never, during his lifetime, had they heard any one else so state or intimate; but that a different person, one S., was generally understood to be the partner of Moss in the firm; and they prayed that this answer be taken, both as a plea of non eat factum and a denial of the partnership alleged by the plaintiffs. Held, that these negative averments are not sufficient to “cast suspicion” on the note sued upon, in compliance with the requirements of Article 1443, Paschal’s Digest, respecting pleas of non est factum filed by representatives of other persons.</p> <p>3. By the act of May 33, 1871, executors and administrators are made liable for damages at the rate of ten per cent, per month, when they fail or refuse to obey an order of court directing them to pay over to a creditor of the estate funds in their hands. Held, that a clear case of contumacy must be made out before this court will inflict these onerous damages.</p>

Tried below before the Hon. Hardin Hart. The present is the third appearance of this cause in the Supreme Court. The former appeals are reported in 25 Texas Supplement, and 28 Texas. The judgment mow appealed from was rendered in the District Court -of Collin county, at its September term, 1868. This third appeal came to trial in the Supreme Court in April, 1871, and in the first of the opinions now reported the judgment was then reversed and the cause remanded.

<p>Husband sued for a divorce on the ground of cruel treatment, alleging such treatment to consist of insults and indignities perpetrated by his wife in charging him with adultery, etc.; but his petition failed to deny the truth of the charges complained of. The defendant, being a resident of another State, was cited by publication, but made no appearance in the case. Held, that the petition was not sufficient to support the action; and therefore it was not error to refuse the divorce, although the allegations of the petition were found by a jury to be true.</p>

Error from Hopkins. Tried below before the Hon. W. H. Andrews. The note sued on was made by W. J. Goodson and James Wheeler, on the sixth of March, 1861, and was payable to Wiley Tumlinson or bearer, on or before the twenty-second of January, 1863. The indorsement of it to the plaintiff Johnson purported to have been made on the eighteenth of January, 1863, which was a few days prior to its maturity.

Tried below before the Hon. Hardin Hart. The draft sued on was for $500, drawn by Forrest, in favor of Rawlings, dated February 24,1869, directed to W. C. Richards, of Ellis county, Texas, and payable at sight. The petition was not filed until the twenty-second of July, 1870.

<p>1. Though a verbal promise be in form to pay the debt of another, yet if the promissor’s intent be not merely to pay such debt, but also to sub-serve a purpose of his own, his undertaking is not affected by the Statute of Frauds. The case of Lemmon v. Box, 20 Texas, 329, to the same effect, cited with commendation.</p> <p>2. The holder of notes payable to B., and executed by one Moss as principal, and S. as surety, brought suit on them against the executors of V., alleging that V. was a dormant partner of Moss, in a mercantile firm styled Moss & Co.; that S. was the nominal partner of Moss in the firm, but in fact was only the agent and representative of V.; that the notes were given for goods sold by B. to Moss individually, but by agreement between Moss and S., as the agent of V., the goods were transferred to the firm, and the firm, with B.’s assent, assumed the payment of the notes. Seld, that these allegations set forth a good cause of action against V.; that the transaction was in the nature of a novation, and the Statute of Frauds interposes no obstacle to the plaintiff’s recovery.</p>

Tried below before the Hon. P. P. Wood. The opinion of the court states the material facts. The brief for the appellant bears no signature of the counsel who filed it.

<p>1. The case of The State v. Smith, ante 182, cited and approved, to the effect that Article 2076, Paschal’s Digest, is in force and not repealed, punishing the sale of intoxicating liquors, permitting them to be drunk at the place where sold.</p> <p>2. In a trial of an indictment framed under Article 2076, Paschal’s Digest, the court below instructed the jury that “if they believed, from the evidence, that the defendant sold the whisky, as charged' in the indictment, and suffered it to be deposited in his house where the party purchasing knew where it was, and that the said party-purchasing went and drank of the whisky, they would find the' defendant guilty.” Hdd, that this instruction was not a comment on the weight of evidence, but was correct.</p> <p>3. The court below refused to instruct the jury, that “ although they should believe, from the evidence, that the purchaser of the whisky drank it in the defendant’s store, as charged in the indictment, yet, if they believed that he drank it without the knowledge or consent of the defendant, they will find him not guilty.” Held, that this instruction was properly refused, because it involves a contradiction and absurdity; for the indictment alleged that the whisky was drunk with the defendant’s permission, and if the jury believed it to have been drunk “as charged in the indictment,” they must believe it to have been drunk with his permission, and could not, consequently, believe it to have been drunk without his knowledge or consent.</p>

<p>I. A judgment rendered on a note given for a loan of Confederate money cannot be sustained on the ground that the defendant induced the plaintifE to sell cotton, in order to raise the Confederate money for which the note was given. The adjudications of this court upon Confederate money transactions have not been influenced by such considerations.</p> <p>3. Qucere, would an action for damages lie in favor of a party who was fraudulently induced by another to sell property for Confederate money ?</p>

Error from Titus. Tried below before the Hon. James L. Gray. The facts are stated in the opinion as satisfactorily as they can be in a reasonable compass.

<p>1. The statutory requirements as to service of citations in error are not applicable when an ex parte order of a district judge, made of his own motion, and removing a district clerk from office, is brought to this court by writ of error. In such a case the writ of error was necessary to invoke the jurisdiction and the supervisory powers of the Supreme Court; but no service of citation in error upon the district attorney was necessary.</p> <p>3. Though the Constitution of 1869 confers power upon the district judges to remove sheriffs and district clerks from office, for cause spread upon the minutes of the court, yet these provisions do not invest a district judge with an arbitrary power to remove such officers for any cause which he may see proper to spread upon the minutes of his court. The officer cannot he rightfully removed unless he is guilty of some breach of the trust implied by law in the tenure of his office. Only such incompetency, nonfeasance or misfeasance, corruption or partiality in office, as would amount to a forfeiture of the right to enjoy it, can rightfully call into exorcise the judge’s power to remove.</p> <p>3. Since the adoption of the common law, in the year 1840, the Constitutions of Texas have been framed with reference to it, and by its ...principles and modes of procedure their interpretation has been and must he controlled; and hence, when the present Constitution clothed the district judges with the power to remove sheriffs and district clerks, it was intended that such power should he exercised in obedience to the rules of the common law. The proper mode of procedure, therefore, is to enter a rule nisi, requiring the officer to show cause why he should not he removed from his office. This rule nisi may he entered by the judge of his own motion, or upon the relation of another; hut in every case the cause of removal must be set forth in plain and intelligible words, and with issuable allegations affording the inculpated officer an opportunity to contest and disprove them. General allegations of incompotency, or wholesale charges of any kind, will not suffice.</p> <p>4. On reversing a district judge’s order removing from office a district clerk, this court reinstates the clerk, who, in the present case, was afforded no opportunity of defending himself in the court below.</p>

Tried below before the Hon. J. M. Onins. The plaintiffs in this cause were Mrs. Hardy and her husband. . The defendants were A. S. Broaddus, E. C. Knox, and Gr. W. Farrow. The suit was for injunction and damages.

Tried below before the Hon. J. B». Burnett. The appellant’s bill was dismissed on demurrer by the court below,—his preliminary injunction having previously been dissolved on the filing of the appellee’s answer, denying the allegations of the plaintiff. This appeal is the result.

<p>1. The vendor of land has a lien upon it for the payment of the purchase money, which lien exists hy operation of law, and without any agreement between the parties ; hut if the purchaser proves that the lien was not intended to he reserved, or that it was waived, or has heen released, the law will not presume a lien, to defeat the intention of the parties.</p> <p>2. The vendor may waive his lien hy taking personal security for the purchase money, or hy taking a chattel mortgage, an assignment of collaterals, or a mortgage on other real estate, as security therefor.</p>

<p>1. An administrator having, in the management of the estate, exercised all the diligence he could have exercised had the business been his own, is not liable for want of that degree of diligence required by the probate law of 1870.</p> <p>2. Section 178 of the probate law of 1870provides, “that the court shall exercise equitable control in making executors or administrators accountable for interest accruing to the estateand it appearing to this court that this power was equitably exercised in the present cause by the court below, it declines disturbing the judgment.</p>

<p>In a case appealed from the county court of W. to the district court, the appellee moved to dismiss the appeal, on the ground that the appeal bond was defective, in that it did not show from what tribunal the appeal was taken. The objection to the bond was sustained, but the appellee was allowed thirty days to file a good and sufficient bond. This was held not to be error, under Sections 31, 33, 33 and 35 of the act of 1866, organizing county courts.</p>

<p>Appeal from Cherokee. Tried below before the Hon. Samuel L. Earle.</p> <p>The general character of this case is shown by the opinion of the court, and also the most material of the facts.</p> <p>The defendants proved the gift by two witnesses, who were their son and daughter. They thought it was made in the Summer of 1862, and some months prior to the death of Stadler, which occurred in November of that year.</p> <p>To defeat the alleged gift, the plaintiffs were permitted to prove by sundry witnesses repeated remarks of Stadler, on his death-bed and previously, to the general effect that he intended to leave Ms property to certain relatives in North Carolina. These remarks were not made in the presence of the defendants. The notes in question were proved to be all the property left by Stadler.</p> <p>The plaintiffs were also permitted to prove statements made by each of the defendants when they were not together, and which were not consistent with their claim of a gift. There was no evidence of a combination between the defendants to defraud, etc. Exceptions were duly reserved by the defendants to the admission of the plaintiffs’ evidence here noticed.</p> <p>There being verdict and judgment for the plaintiffs, and a new trial refused, the defendants appealed.</p>

Error from Harris. Tried below before the Hon. James Masterson.

Error from Freestone. Tried below before the Hon. J. M. Thurman. In this case it was agreed between the plaintiff’s attorney and the attorneys for the defendant, that the plaintiff Roller should take judgment by default against the defendant Adams for $7000, with stay of execution for four years. The judgment was not to draw interest, and was to be secured by alien on certain described lands belonging to the defendant Adams. This is the only material fact.

Tried below before the Hon. J. B. Williamson. A clear statement of the facts is given in the opinion of the court. The record of the suit of McKleroy & Bradford against Dunn, Tates & Bichie was introduced in evidence by the plaintiff in the present case. It showed that answers for Dunn, Yates & Bichie were duly filed by attorneys. The appellee Boynton was a tenant of H. M. Cushman, who came in as a co-defendant, and who is one of the appellees.

Tried below before the Hon. John G. Scott. In 1867, Hushing made a mortgage to F. C. Good-game, to secure the payment of a certain note due by him to Goodgame, with power of sale, and constituting Goodgame the trustee to sell. The note remaining unpaid after maturi ty, Goodgame, in pursuance of the provisions of the mortgage, advertised the property in the mortgage mentioned, and sold the same at public outcry, and became the purchaser himself.

<p>On the trial of an indictment for gaming, the State proved that the act had been committed, but failed to prove that it was committed within one year before the finding of the indictment. Held, that a verdict of guilty was not warranted by the evidence.</p>

<p>1. An indictment charged the defendant with the theft of a pair of boots from the store of C., said boots being then and there the property of P., and in the possession of said 0. The indictment averred the taking to be “without the consent of the owner.” Reid to be sufficient; the indictment does, in effect, negative the idea of the consent of either P. or C.</p> <p>8. Where the mere possession of property is entrusted by one person to another, with no other power than to hold the same, he is incompetent to consent to the taking of the property by another; consequently, in an indictment for theft, it is unnecessary to charge that the taking was without the consent of the person holding the same.</p> <p>8. When the defendant in a prosecution for theft relies upon the consent of a third person to the taking of the goods as an element in his defense, it devolves upon him to prove this fact, in order to rebut the presumption of guilty intent arising from the taking without the consent of the owner.</p> <p>4. Property purchased in a store and left there for safe keeping until called for, is left in the possession of the owner of the store, whether he be personally present or not.</p>

Error from Smith. Tried below before the Hon. W. M. Taylor. There is no occasion to state other facts than those noticed by the court in its opinion.

<p>1. In 1857 G. sold to R. a tract of land for §1800, of which more than half was paid at the time, and R.’s note at twelve months was given for the balance. In 1860, G., without asserting his vendor’s lien, recovered a personal judgment against R. upon the note. In 1868, R. being then dead, leaving the judgment unpaid and his heirs in possession of the land, G. sued the heirs in trespass to try title, but made no offer to refund the purchase money he had received. G. never presented his judgment to R’s administrator for allowance; and in the present suit the defendants, though claiming under R’s purchase from G., make no offer to pay the purchase money -remaining unpaid. No other conveyance than a bond for title had passed from G. to R. Held, that G. is not entitled to recover the land from the heirs of R. By his suit and recovery in pereonam against R., it seems that G. made such an election between his remedies as precludes him from a recovery of the land from the heirs of R.</p> <p>2. The facts of this case, as above shown, bring it within the principles-established by this court in Roeder v. Robson, 20 Texas, 754, to-wit r When there is default in the payment of the purchase money of land, the vendor may sue to recover back the land, with an alternative prayer for a money judgment in case he is not entitled to the land -r but when the vendor sues merely to recover the money, he thereby affirms the contract and asks a specific performance of it.</p> <p>3. On the case as above stated, G., after the death of R., should have established his claim against the latter’s estate ; and this appears to be-regarded as the extent of his rights. But, queere, if in his present suit he had averred and proved the insolvency of R.’s estate, and had offered to refund to it or to the defendants the purchase money he had received from R, would he have been entitled to relief ?</p> <p>4. A purchaser of land pendente lite stands in no better attitude than his-vendor.</p>

Tried below before the Hon. Leroy W. Cooper. Held: and with one certain six shooting pistol, which he, the said Felix Warfield in his hand then and there had and held, which said gun and said pistol were then and there deadly weapons, and were then and there charged with gunpowder and leaden balls, did then and there, by discharging and shooting said gun and pistol off towards, at…

<p>Appeal from Rusk. Tried below before the Hon. J. B. Williamson.</p> <p>The opinion states the material facts.</p>

<p>An indictment for taking up and using an estray charged the defendant with “taking up and using an estray whose owner was known to the grand jury." The defendant excepted to the indictment, on the ground that an animal whose owner was known could not be an estray. The court below sustained the exception and quashed the indictment. This is held tobe error; the fact that the owner of the animal has been discovered, and was known when the indictment was found, is no proof that the animal was not an estray when taken up.</p>

Tried below before the Hon. L. W. Cooper. The receipt of the appellants, as attorneys, referred to in the opinion, was made in April, 1861, to Jesse Duren, the intestate of the appellee. It recited that Duren indorsed the notes in blank, and covenanted that the appellants would bring suits on the notes against the makers of them, and against Duren as indorser, and would apply the proceeds, when collected, to certain judgments against Duren.

Tried below before the Hon. L. Lindsay. This suit was brought by the appellees to the June term, 1871, of the District Court of Colorado county, and against the appellant, for the value of work done, and materials furnished by the plaintiffs, on and for the homestead of the defendant, during the months of January, February and March, 1870. There was no' written contract between the parties.

Tried below before the Hon. I. B. McFarland. John Trousdale, the testator, bequeathed to his wife, the appellant, his homestead place during her natural life, and gave her absolutely all the household and kitchen furniture, except such as should be specifically bequeathed to others, together with two horses or mules of her selection out of his stock, twenty head of cattle, twenty of sheep, twenty hogs, a wagon and harness for two horses, four hundred dollars in money, and “…

Tried below before the Hon. I. B. McFarland. The opinion states the material facts. In the second íiead-note will be found the gist of the charges given and refused, and to which allusion is made by this court.

Error from Washington. Tried below before the Hon. I. B. McFarland. The facts are clearly indicated in the opinion of the conrt. It will be seen that after the first opinion of this ■court, a rehearing was asked, and a more elaborate ■opinion then delivered.

<p>1. A note payable in Confederate money is illegal and void, whether the fact appears on the face of the note or by any legitimate proof.</p> <p>8. The court below charged the jury that, “though a surety on an illegal and void note cannot be forced to the performance of the stipulations of the note, yet he may be held responsible for all liabilities which his principal has incurred in regard to the consideration or subject matter for which the note was given.” This is held to be error. A surety is chargeable only by the terms of his written contract, and when his written contract is void, it constitutes no cause of action against him.</p> <p>3. This suit being against a surety on a note payable in Confederate money, the judgment below for the plaintiff is reversed and the cause dismissed by this court.</p>

Appear from Washington. Tried below before the Hon. I. B. McFarland. The facts of the case are sufficiently stated in the ■opinion of the court.

<p>Appeal from Washington. Tried below before the Hon. I. B. McFarland.</p> <p>The facts of the case are sufficiently stated in the-opinion of the court.</p>

<p>Appeal from Fayette. Tried below before the Hon. I. B. McFarland.</p> <p>The opinion indicates the material facts.</p>

<p>Suit by indorsee was brought against maker of the following instrument r ‘11 promise to pay M. §173 when I collect a note received from him on T.” The petition averred that the contingency mentioned in the instrument had happened. Defendant answered that at the date of the instrument sued on, IT., the payee, was indebted to him, and indorsed to him the note on T., which was for an amount greater than the debt, and the instrument sued on was executed by defendant for the excess ; that only one-third of the note on T. had yet been collected ; that M., the plaintiff's assignor, was a guarantor of the note on T., and if he, M., had taken up that note by a payment of less than its amount, he had done so in fraud of defendant’srigkts, etc. But the proof showed that prior to M.’s indorsement to plaintiff of the instrument sued on, the defendant transferred the note on T. to another person, who sued T. as maker and M. as indorser of it, and that M. had compromised the suit and had taken up the note by paying the defendant’s assignee about one-third of its amount. Held, that the defendant’s transfer of the note on T., and M.’s adjustment of that note with the owner of it, constituted such an occurrence of the contingency specified in the instrument sued on as to make the latter due and payable according to its terms and import.</p>

<p>Appeal from Galveston. Tried below before the Hon. George E. Mann.</p> <p>The opinion and head-notes state all facts of any importance.</p>

Error from Travis. The Reporter regrets that he has been unable to obtain any other paper connected with this case, than the ■opinion of the court. Hence he is unable to give details of the case which would doubtless render the rulings of more practical importance than they may be deemed in the absence of the facts.

Tried below before the Hon. B. F. Carter. The report of this case should be read in connection with the subsequent ruling in it, reported in 34 Texas, 143; from which it will be seen that a motion for a rehearing was made, which, at the second subsequent term of this court, was dismissed upon grounds not involving the merits of the original opinion, now reported.